Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 1 of 11
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO 05-394 (RBW)
v. )
)
I. LEWIS LIBBY, )
also known as "Scooter Libby" )
GOVERNMENT'S RESPONSE TO THE COURT'S
DRAFT JURY INSTRUCTIONS
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL
COUNSEL, respectfully submits the following response to the draft jury instructions provided to the
parties by the Court on Friday, February 16, 2007, as well as to the defendant's response to the
Court's draft, and objections to the Court's proposed verdict form filed on February 17, 2007.
Unanimity Instructions and Special Verdict Forms
The government does not object to modifying the unanimity instruction to read:
If you cannot unanimously agree that a particular statement or representation alleged
in Count [One, Two and Five] was false, then you must find Mr. Libby not guilty of
that count.
The government objects to including the phrase "and that Mr. Libby knew this when he made the
statement" in that it is potentially confusing, given the Court's other instruction that defines "false"
to including defendant's knowledge of the statement's falsity. As the government has previously
argued, it is potentially confusing and inappropriate to repeat portions of instructions in multiple
contexts.
With respect to the Court's suggested verdict form, the government prefers the use of the
special verdict form suggested by the Court to the use of a special verdict form with respect to Count
One and general verdict forms with respect to the other counts as requested by defendant. When

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 2 of 11
asked by the Court on February 15, 2007 whether the government could agree to the defendant's
proposal, the government responded that it could agree if certain additional instructions were
provided. That position has not changed; however, as previously expressed, the government's
preference is for the use of the verdict form drafted by the Court. Moreover, the government notes
that the defendant has failed to express any reason for his objection to the use of a special verdict
form with respect to Counts Two and Five and the government is at a loss to think of one. The
government is unaware of any case authority indicating that the defendant's choice governs the
decision; instead, as the government reads the applicable case law, the matter is left to the discretion
of the trial court.
Obstruction of Justice
The government agrees that the language of the Obstruction of Justice elements instruction
should be modified. The government proposes that elements (3) and (4) be modified as follows:
(3) That the defendant corruptly endeavored to influence, obstruct or
impede the due administration of justice;
(4) That Mr. Libby carried out the corrupt endeavor by making the
following three allegedly false statements with intent to mislead or deceive the grand
jury as to when or how he acquired or thereafter disclosed to the media information
concerning the employment of Valerie Plame Wilson by the CIA.
Finally, the government also agrees with the defense that the passage "and Mr. Russert told
Mr. Libby that all the reporters knew it" should be added to False Statement No. 1 and removed from
False Statement No. 2 in the Obstruction of Justice instruction.
2

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 3 of 11
Perjury
The government has no objection to removing the ellipses between the two sub-statements
in Statement One of Count 5, and to editing the parenthetical to state that the statement extends from
page 187, line 14 to page 188, line 5, as requested by the defense.
The government also has no objection to the defendant's proposed change to the last sentence
of the perjury instruction, so that it references the four allegedly false statements rather than the two
appearances.
The government maintains that there is no factual basis to support the giving of any
instruction regarding ambiguity. See, e.g., Mathews v. United States, 485 U.S. 58, 63 (1988)(stating
that defendant is "entitled to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor"). Thus the government objects to the
language concerning ambiguity contained in the Court's draft instruction regarding the elements of
perjury, and requests that it be deleted.
The government agrees with the Court (and with defense counsel, who originally made the
suggestion) that it will be helpful to the jury to have citations to the full grand jury transcripts for the
testimony that is at issue with respect to Counts 4 and 5. The government therefore provided such
an exhibit with its February 16, 2007 filing (Government's Objections and Proposals Regarding
Final Jury Instructions). In the most recent set of instructions provided by the Court, the transcript
cites have been incorporated into the instructions; therefore, a separate exhibit may no longer be
necessary. If the Court would still like to include the "Exhibit A" previously provided by the
government, the government has no objection to including it with the instructions, and disagrees that
there is any potential for prejudice to the defendant in doing so.
3

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 4 of 11
If, however, the Court believes providing the cites within the instructions obviates the need
for a separate exhibit, the government also has no objection. If that is the case, the government
suggests the following proposal to address the defendant's concern that the current language of the
instructions indicates that a separate exhibit is being provided: Change "with" to "in" in the sentence
that currently states, "That portion of the grand jury testimony which the indictment alleges in count
four was false, is being provided to you with these instructions, with those portions of the testimony
that are allegedly false underlined." This sentence is used with both Counts 4 and 5, so if adopted,
the change should be made in both places.
Beyond a Reasonable Doubt
The government agrees with the defense's suggestion that the phrase "beyond a reasonable
doubt" should be moved from its current location after "in order to prove an offense" to between the
phrases "the government must prove" and "the following four elements" in each of the elements
instructions.
Evaluation of Prior Inconsistent Statements
The concerns raised by the defense on this issue, namely, that the Court's suggested language
"suggests that a prior unsworn statement is, to some degree, inherently questionable because the
declarant faced no criminal punishment for lying" and that "the prior statement could have been
made before any motive to lie existed," suggest that the defense may be planning to argue prior
inconsistent statements for their truth. Obviously, such an argument would be contrary to law and
contrary to the Court's instructions. However, the government agrees that the phrase "when the
witnesses were not under oath" is not included in the D.C. Form Instruction, and has no objection
to its deletion.
4

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 5 of 11
Instruction Regarding Defendant's July 12 Conversation with Judith Miller
The government requests that, if the Court's current language is used, the following should
be added before "beyond a reasonable doubt" at the end of the instruction: "including the allegations
of Count One."
Alternatively, the government proposes that the following language be used in place of the
Court's draft instruction:
Count One of the indictment originally included an allegation that Mr. Libby
obstructed justice by making false statements about a conversation with Judith Miller
on or about July 12, 2003. That allegation has been dismissed and is no longer
before you. You may not consider the fact that the allegation was once made, or the
fact that the allegation was later dismissed, to affect or influence your deliberations.
You may, however, consider the evidence you heard regarding the July 12, 2003
conversation between Mr. Libby and Ms. Miller, as well as evidence you heard
regarding all other conversations between Mr. Libby and Ms. Miller, as evidence in
determining Mr. Libby's guilt or innocence on all of the counts of the indictment,
including Count One.
In addition, the government notes that, as currently formulated, this instruction is included
in both the limiting instructions and the final instructions. Only one copy of the revised instruction
should be sent back to the jury, and the instruction previously given should be removed from both
sets of instructions.
Instruction Regarding IIPA
The government has noted that the Court intends to allow the defense to re-open the evidence
to admit a copy of the IIPA. We understand that this will obviate any need for an instruction on this
issue.
5

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 6 of 11
Given the likelihood that the defense will focus on the IIPA statute in closing, and on the
defense's arguments during opening that suggested that others should be on trial instead of him, the
government proposes that the following instruction be given:
You are here to decide whether the government has proved beyond a reasonable
doubt that the defendant is guilty of the crimes charged in the indictment. The
defendant is not on trial for any act, conduct or offenses not alleged in the indictment.
Neither are you concerned with the guilt or innocence of any other person or persons
not on trial as a defendant in this case.
Pattern Crim. Jury Instr. 5th Cir. 1.19 (2001).
Memory
The government strenuously objects to including the language which the defense proposes
be added to the Court's current instruction on memory:
You should consider that a person's confidence in the accuracy of his
recollection of an event may not correspond directly to the accuracy of the person's
recollection. In other words a person may be very confident that his memory of an
event is accurate when in fact it is inaccurate.
You should also consider that if a person remembers an event incorrectly the
first time he tries to recall it, his later recollections of the event may repeat that error.
Def. Rsp. at 8.
As an initial matter, the government notes that, far from conceding the accuracy and
reliability of the "findings" concerning which the defendant proposed to introduce expert testimony,
the government has consistently maintained that the proffered "findings" could not reliably be
applied to the facts of this case and would not be helpful to the jury. See R. 139 at 17. 1 The question
of whether the proffered "findings" should be admitted does not turn on whether they are reliable
1
The government did not challenge Dr. Bjork's credentials or general expertise, but merely
challenged the reliability of his findings as applied in the instant case, and argued that the admission
of his opinions would be confusing and misleading, and not helpful to the jury.
6

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 7 of 11
in the abstract, or in contexts distinct from this case. What matters is whether they meet the Daubert
standard of being both scientifically reliable and relevant, that is, whether the "`reasoning or
methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589, 593 (1993). As the Supreme Court has cautioned, "`Fit'
is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for
other, unrelated purposes.'" Id. at 591. See also General Electric Co. v. Joiner, 522 U.S. 136, 146
(1997)(approving exclusion of expert testimony as unreliable where studies offered in support of
expert's conclusion dissimilar to facts of case). Thus, as the government previously argued,
whatever merit Dr. Bjork's findings may have in other contexts, putting such findings before the jury
in this case would serve no purpose other than to confuse and mislead.
Nothing in the testimony of Dr. Elizabeth Loftus at the Daubert hearing justified the
presentation to the jury in this case of Dr. Bjork's opinions regarding the correlation of confidence
and accuracy, or the likelihood that errors in recall may be repeated. On cross-examination, 2 Dr.
Loftus conceded that the studies Dr. Bjork relied upon regarding the correlation between confidence
and accuracy failed to take into account the distinction between comparisons between the confidence
and recall of multiple witnesses to the same event, and comparisons between recollections of
different events by the same person. 10/26/06 a.m. Tr. 84-85. Dr. Loftus also acknowledged that
studies showing that people are likely to repeat errors in recollection generally focused on the
circumstances involving eyewitness identification, and failed to present any studies that addressed
2
Rather than expose Dr. Bjork to cross-examination, the defense elected to present the
testimony of a different expert, Dr. Elizabeth Loftus at the Daubert hearing conducted by the Court,
and focused Dr. Loftus's testimony on studies showing that jurors failed to appreciate the proffered
findings on memory, rather than on the proffered findings themselves.
7

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 8 of 11
the question of whether jurors were able to appreciate this phenomenon in any other context.
10/26/06 p.m. Tr. 13-14.
The instructions defendant seeks to include would improperly put before the jury claims and
conclusions that Dr. Loftus conceded, and the Court previously found, were supported only by
studies involving substantially different factual situations, and unsupported by any studies showing
that the issues, at least applied in the factual context of this case, were outside the ken of the average
juror. R. 169 at 15 ("This Court . . . has difficulty concluding that the studies provided by the
defendant are applicable in any meaningful way to the case at hand, because they do not focus on the
precise issues before the Court.") and 25-27 ("[T]he theories about which Dr. Bjork would testify
are not beyond the ken of the average juror."). Giving the requested instructions would deprive the
government of an opportunity to refute through cross-examination the reliability and applicability
of the claims and conclusions included therein in the context of this case, and would be highly
misleading and prejudicial.
As this Court may recall, Dr. Loftus conceded that the correlation between confidence and
accuracy when comparing a single subject's memories is different from the correlation when
comparing the memories of multiple subjects. Specifically, Dr. Loftus acknowledged that the
correlation is stronger when you compare one subject's memories of different events. 10/26/06 a.m.
Tr. 85. Defendant ignores this distinction and argues that the instruction is needed to assist the jury
in assessing the defendant's apparent confidence while testifying before the grand jury, and in
comparing the recollections of multiple witnesses, including defendant, Tim Russert and Ari
Fleischer. In light of Dr. Loftus's comments, even assuming that it would be appropriate to
extrapolate from research involving circumstances far different from those present in this case, it
8

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 9 of 11
would be inaccurate and misleading to instruct the jury regarding a weak correlation between
confidence and accuracy, and allow the defense to argue, based on that instruction (See Def. Rsp.
at 9), that the jury should not consider the relative confidence levels reflected by defendant's grand
jury testimony in assessing whether his false statements were the product of faulty memory or
deliberate lies. With respect to the jury's assessment of the relative reliability of the recollections
of defendant and Messrs. Russert and Fleischer, the proposed instruction would serve no purpose.
According to the defense, all three witnesses testified with apparent confidence in the accuracy of
their recollections. Under such circumstances, the jury is not likely to consider apparent confidence
as a significant factor, with or without an instruction on the subject. The lack of need for an
instruction on the weak correlation between confidence and accuracy is further supported by the
prospective jurors' comments during jury selection which clearly indicated that the fact that people
sometimes "firmly believe that their memories are accurate when they are not" is a matter of
common knowledge.
The proposed instruction on the likelihood of repeating recollection errors is even more
problematic. None of the studies provided by Dr. Bjork in support of this issue involved factual
contexts even remotely similar to this case; none involved erroneous recollections of conversations.
The defense suggests that the instruction is needed to provide the jury with a basis for contradicting
the government's argument that, once defendant spoke to the FBI in October 2003, he was motivated
to stick to his story, but fails to explain what "error" defendant may have repeated. Whatever that
error may be, it would be highly prejudicial to state as a fact that the jury is bound to accept, a
"finding from the science of memory" that has not shown to be reliably applied in circumstances like
9

Case 1:05-cr-00394-RBW Document 296 Filed 02/18/2007 Page 10 of 11
those presented here -- particularly where the only factual foundation for the instruction is the
assumption of the very fact the jury will be required to decide.
Limiting Instruction Regarding Disclosure of NIE
The government requests that the phrase "at least" be removed from the Court's most recent
formulation of the limiting instruction regarding the propriety of defendant's disclosures of portions
of the NIE because the evidence shows, at best, that the portions of the NIE disclosed by the
defendant were declassified on or after July 8, 2003, and not before.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
Debra Riggs Bonamici
Kathleen M. Kedian
Peter R. Zeidenberg
Deputy Special Counsels
Office of the Special Counsel
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
202-514-1187
Dated: February 17, 2007
10